Staying alive: Romney and the Massachusetts same-sex marriage ban

Don Gorton, Esq. [writer for Gay and Lesbian Review/Worldwide]: "The political victory achieved by opponents of same-sex marriage in the January 2, 2007 Massachusetts Constitutional Convention (both houses of the legislature sitting jointly) stemmed largely from dicta from the Supreme Judicial Court in a case in which the justices admittedly lacked jurisdiction. The Court, in a suit initiated by former Governor Mitt Romney, held that it lacked authority to force legislators to vote on the merits of a proposed ban on same-sex marriage, as opposed to a dispositive procedural motion, as had occurred on November 9, 2006. Unusually given the Court's lack of authority, they suggested in dicta that the legislature had a "duty" to vote up or down on the amendment. (A vote of 1/4 + 1 would suffice to advance the amendment in a substantive vote, while procedural questions are usually decided by simple majority.)

Although the Court's dicta lacked legal effect, they proved politically potent in swaying the legislators. Little attention was given to the fact that the "duty" was a non-justiciable political question the Justices said only the electorate could enforce. Opponents of same-sex marriage seized on the Court's rhetorical notion of "duty" to lobby swing lawmakers to take an up or down vote. The lobbying pitch proved highly persuasive, more so than anything the anti-gay forces had mustered to date.

The emptiness of the Court's advice as it dismissed Romney's case was forcefully illustrated by the fact that the legislature, shortly after taking up the gay marriage ban, refused to consider the merits of a health care initiative petition. The previous Constitutional Convention had sent the health care proposal to a study committee. Notwithstanding the Court's clear direction that a disposition on grounds of procedure was inappropriate, the presiding officer required a 2/3 vote of the body for the health care petition to be eligible for consideration on its merits. Slightly less than a majority of the legislators voted to discharge the petition from committee, though the proposal clearly had sufficient support to advance to the ballot if an up or down vote were taken.

In the wake of the Court's political commentary, and the selective reliance on those dicta to take a vote on the gay marriage ban only, observers of the process spoke of a "gay exception" to the rule that the legislature has plenary authority to dispose of initiative petitions as it will. Consider that the gay marriage amendment advanced on a vote of 62-134 against, while the health care amendment was defeated just a few votes shy of achieving a majority. It was this "gay exception" that the former Governor hailed as a victory for "the people of Massachusetts." More precisely, it was a victory for Romney's political ambitions: he has sought to parlay fulsome opposition to same-sex marriage into support from social conservatives for his presidential bid. That the Court and the Democratic legislators contrived to give him this political victory is remarkable."